Sunday, December 15, 2013

Critics call for Nevada to close legal loophole for school employee sex offenders

The only class of felony sex offenders in Nevada not required to register in a national database are school employees and volunteers convicted of having sexual relations with their students who are younger than age 18.

"I think the penalty should be more substantial," Clark County Chief Deputy District Attorney Jim Sweetin said. "There should be at least lifetime registration, possibly lifetime supervision."

Those offenders won't always show up on the National Sex Offender Public Registry, because there is no mandatory registration for them required under Nevada law. The age of consent in Nevada is 16. However, the law prohibiting sexual conduct between school employees and students covers students under the age of 18.

Sweetin finds that lack of required registration odd.

class of felony sex offenders in Nevada"It's very strange when you look at some laws. You would have to say that a teacher who is in a classroom with children, and who is committing these crimes, would have to fall into this area," Sweetin said. "A teacher attracted to children, that's somebody you definitely want to tag."

From 1994 to 2005, 16 Nevada teachers and other school employees or volunteers were convicted of sexual offenses against students but were not required to register as sex offenders in the national registry.

Those numbers were reported in a 2011 study done for the local nonprofit advocacy group S.E.S.A.M.E., or Stop Educator Sexual Abuse, Misconduct and Exploitation.

Those 16 teachers were convicted under Nevada Revised Statutes 201.540 or 201.550, the laws prohibiting sexual conduct between a school employee and a student. But the laws, introduced in 1997, do not require those convicted to register as sex offenders.

"Our children spend the largest portion of their day awake at school. That should be the safest place for them," said Terri Miller, president of S.E.S.A.M.E.

Assembly Bill 265, proposed in the 2013 legislative session, sought to revise the statute to require school employees or volunteers convicted of sexual conduct with a student to register as sex offenders and have lifetime supervision.

The bill was supported by the Clark County School District, the Nevada District Attorneys Association and the Metropolitan Police Department, among others.

The Clark County public defenders office opposed the bill.

"The concern was that it would be a step away from how we typically looked at registration," Clark County public defender Steve Yeager said Thursday.

Yeager, a representative of government affairs for the public defender's office during the Legislature, said many of those convicted under the current law were in consensual relationships with students who were 16 or older.

"Traditionally, in these consensual relationships, laws have said that we won't mandate registration," Yeager said.

The bill never made it to a hearing for a vote in the Legislature. According to Assembly Judiciary Committee Chairman Jason Frierson, D-Las Vegas, there was not enough time for a hearing on the bill.

But the law as it stands is "too narrow in scope," Miller said. "We need to broaden the law or simply raise the age of consent."

In 2007, the Nevada Legislature approved the Adam Walsh Child Protection and Safety Act, a federal statute passed in 2006 to enhance the punishments of sex offenders.

The Sex Offender Registration and Notification Act is commonly called SORNA. The first section sets stronger guidelines on sex offenses and the punishments that should accompany them.

Since the act was signed into law, the SORNA guidelines have been "substantially implemented" in 17 states, according to the law's federal website.

A SORNA implementation review of Nevada, done in 2011 by the U.S. Department of Justice's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking, requires any sexual conduct between an employee and student to fall under Tier II sex offender registration requirements. Those convicted under that law would have to register as a sex offender for a minimum 25 years.

Registration requires the person to enter information about their conviction in the national sex offender database. Sweetin said supervision requires a person to check in regularly with a probation officer. If a registered offender moves, they must update their address within 48 hours.

The reasoning behind registration and supervision is to identify those offenders "who are problematic with the chance of possibly re-offending," according to Sweetin.

"When a teacher offends against a child, I think that's much more substantial than someone off the street committing the same act," Sweetin said. "My preference would be to protect the community, to put up all of those roadblocks to re-offending that we possibly can."

Without those roadblocks, offenders could find themselves working with children shortly after their conviction.

"If they move from state to state, there's no real structure set up that's going to require those that they come in contact with to know their history," Sweetin said. "If you have someone who has to register, then you take care of that problem."

In many cases, because of issues involving the age of consent in Nevada, uncooperative witnesses, or the victim claiming to be in love with the teacher, the sexual conduct charge is the only tool prosecutors have in their pocket, Sweetin said.

"The statute gives us the ability to go after them, even if (the victims are) 16 or 17," Sweetin said.

By Colton Lochhead,, 702-383-4638, Follow @ColtonLochhead on Twitter

Source: The Las Vegas Review-Journal

Residents file legal claims over actions during the blaze

More than a dozen Yarnell-area residents filed a raft of legal claims on Friday with the Arizona Attorney General's Office seeking damages for loss of property and lost earning potential from the Yarnell Hill Fire and for emotional distress arising from a "cover-up."

Homes burn as the Yarnell Hill Fire burns in Glenn Ilah
Homes burn as the Yarnell Hill Fire burns in Glenn Ilah
In the notices of claim, the residents say that the fire destroyed their homes and other property and much of their community because of the "negligence, carelessness and intentional misconduct" of Yavapai County, Prescott, the state and the Yarnell Fire District.

They argue that with reasonable coordination and planning, firefighting managers could have prevented the area's "obliteration" without endangering the Granite Mountain Hotshots -- 19 of whom died in the June 30 blaze -- or other firefighters battling the blaze.

The notices of claim further charge that fire commanders had a duty to arrange an orderly withdrawal that would have allowed fleeing residents to save heirlooms, mementos and other personal property. That, the notices argue, would have "changed the last-minute, terror-filled, desperate flight for their lives into a calm, orderly and efficient retreat."

The claims seek damages from the state, Yavapai County, Prescott and the Yarnell Fire District. The Fire District handles firefighting in the area. The Arizona State Forestry Division was coordinating the fight against the Yarnell Hill Fire on June 30.

Representatives of the county and the Forestry Division did not respond to calls for comment on the claims late Friday. A Prescott city representative declined to comment. Richard Mayer, a member of the Yarnell Fire District board, said that members have a regularly scheduled meeting Dec. 20 and that he did not want to comment until after the meeting.

A spokesman with the state Department of Administration said officials would not comment on active claims.

Craig Knapp, attorney for those who filed the notices, declined to comment. "We're not done, so I can't comment until we're done filing all the claims," he said. He declined to specify how many more will be filed other than that it is "a significant number."

The firefighting managers failed to develop a coherent strategy to fight the fire and protect the surrounding communities and residents, and then they ordered a disjointed evacuation, the residents claim.

"But for blind luck, the pluck of Yarnell's residents and a few fortunate flukes of wind, the firefighting managers would have caused massive deaths," the notices read. Chiefs bungled the effort from start to finish and then "lamely tried to cover up and whitewash their own negligence and intentional wrongdoing," the notices say.

The notices cited the 4-0 vote earlier this month by the Industrial Commission of Arizona to impose $559,000 in penalties against the Arizona Forestry Division for its handling and oversight of the fire.

The notices also underscored the emotional damage residents suffered, describing the hasty evacuation of that day, with burning embers raining down on terrified residents and heat so intense that vehicle tires exploded. "Swirling, choking smoke blanketed Yarnell, blotting out the sun, turning day into night, and making it almost impossible to breathe or to see where to walk or to drive," the notices read.

George DeLange, whose home in nearby Glen Ilah was destroyed, narrowly escaped. He is seeking $750,000 each from Yavapai County, the state, Prescott and the Yarnell Fire District. If those entities agreed to pool their resources, he would accept $750,000 total, according to the notice of claim.

DeLange, a 73-year-old retiree, started the foundation on his new home on Friday. He lost everything in the fire, including original paintings and sculptures, family photographs and heirlooms. The claim won't bring those back, he said, though any money they collect would help with the financial stress he and his family have endured.

"I think the whole thing was mishandled from the very beginning when the fire started," he said. "Because of that, I just feel that someone there should be responsible in my case for whatever losses I sustained. My own personal opinion is those deaths that occurred never should have happened to begin with."

Republic reporters Yvonne Wingett Sanchez and Anne Ryman contributed to this article.

By Kristina Goetz, The Republic

Source: The

Sunday, December 1, 2013

Legal fallout continues over Arkansas oil leak

Lawsuits and alleged safety violations are mounting against Exxon Mobil Corp. following the rupture eight months ago of a pipeline that spilled thousands of barrels of oil in central Arkansas.

Since Exxon's Pegasus pipeline ruptured March 29 and spilled the oil in the Mayflower community about 30 miles northwest of Little Rock, there have been at least 17 lawsuits against Exxon or its subsidiaries in state or federal courts.

And on Nov. 6 the Pipeline and Hazardous Materials Safety Administration alleged nine "probable" violations of safety regulations related to the spill and proposed more than $2.6 million in civil penalties.

Exxon Mobil
Exxon Mobil has not said whether it will challenge the findings. Company spokesman David Eglinton told the Arkansas Democrat-Gazette ( ) that the company "will directly engage" with the safety administration about the allegations.

Shortly after the company was notified of the safety allegations, Exxon Mobil issued a statement saying that was still reviewing the notice and had not determined what action it would take.

"Regarding next steps, we are still reviewing the NOPV (notice of probable violations) and have not yet determined our future course of action," according to the statement provided by spokesman Aaron Stryk.

Damon Hill, a spokesman for the safety administration, told the newspaper Friday that the agency had not received any response from Exxon Mobil.

By Associated Press

Source: The Sacramento Bee

Long-shot legal challenges to health care law abound

President Obama's signature health care law could get nicked by the Supreme Court next year when the justices take up the mandate that most businesses provide free coverage for contraception. But that's not the only legal hurdle it faces.

In courtrooms across the country, Republican state attorneys general and conservative groups are challenging the way the law was passed, the way it was worded and the bureaucracy it created.

President Obama and Chief Justice John Roberts
President Obama and Chief Justice John Roberts
Obama and the millions of Americans who stand to benefit from the law's insurance expansion, the good news is that the lawsuits are long shots. Most are pending at federal district courts, which gives the government more time to implement the law and could make judges less likely to rule against it.
Still, a favorable appeals court ruling in any of the cases might lead to another Supreme Court showdown like the one expected in March or April, when the justices will consider business owners' religious objections to providing certain types of birth control coverage.

"An act this complicated was always going to raise additional legal questions," says Randy Barnett, a Georgetown University law professor who was a primary force behind the original legal challenge to the health care law.

Perhaps the most closely watched lawsuits are those in the District of Columbia, Virginia, Oklahoma and Indiana that, ironically, accept the law's wording at face value.

As passed by Congress and signed by Obama in 2010, the law offers federal subsidies to - and threatens tax penalties on - individuals and businesses in state marketplaces, or exchanges. But 35 states are served by a federal exchange, and while proponents intended for the subsidies to apply nationwide, the law refers to them only in state exchanges.

The lawsuits challenge an Internal Revenue Service rule that applies the hundreds of billions of dollars in subsidies to all states and subjects employers and taxpayers nationwide to penalties. A victory could threaten the subsidies, making health coverage unaffordable for millions and the health care marketplace unworkable.

One of the cases, Halbig v. Sebelius, will be back in federal district court in the District of Columbia on Tuesday. Judge Paul Friedman has said he will rule by mid-February. Another case in Virginia could be decided before the end of the year.

"If the courts rule for us, a majority of the country is not going to be under the subsidy provisions," says Sam Kazman, general counsel at the Competitive Enterprise Institute, who is coordinating the legal action. "Politically, that has a huge impact."

Administration allies say the law clearly was intended to make subsidies available nationwide, and the IRS rule is just a logical step in that process. "Courts usually do not reach conclusions that defy common sense," says Robert Weiner, a former associate deputy attorney general and a leading defender of the health care law.

While those lawsuits could wreak havoc with the law, a longer-shot challenge has the potential to wipe it off the books.

That case, Sissel v. U.S., argues that the Affordable Care Act is a revenue-raising bill, which under the Constitution should have originated in the House of Representatives. After all, its proponents argue, Supreme Court Chief Justice John Roberts upheld the mandate that people buy insurance only because the penalty can be seen as a tax.

The conservative Pacific Legal Foundation, which mounted the lawsuit, contends that when Senate Majority Leader Harry Reid amended the House bill by wiping it out entirely and starting over, he violated the Constitution's "origination clause."

If that argument wins in court, says Cato Institute health economist Michael Cannon, "not only do they have to strike down every other revenue measure in the law ... they would have to strike down the entire law."

But no court ever has struck down a law based on its origination in the Senate rather than the House. U.S. District Court Judge Beryl Howell denied the challenge in June, reasoning that the law did originate in the House and was not the brand of revenue measure that had to start there anyway.

That case now goes to the U.S. Court of Appeals for the D.C. Circuit, where others soon will follow. That court's decisions could be the final word for several health care cases -- one of the reasons why its makeup is considered crucial to both sides.

The Senate's recent decision to eliminate its 60-vote threshold for presidential nominations will enable Obama to get three pending nominees to that court confirmed by Democrats. That could help the law's chances in what has been a conservative-leaning court.

Yet another lawsuit comes from the conservative Goldwater Institute, an Arizona-based group that has challenged the powers of the Independent Payment Advisory Board, which was created under the law to control costs.

In its brief, the institute calls the board "perhaps the most egregious consolidation of power in American history."

District Court Judge G. Murray Snow dismissed that portion of the institute's challenge shortly after the law was upheld by the Supreme Court last year, but his ruling is being appealed and will be heard by the 9th Circuit Court of Appeals in January.

One problem for the administration as it fights the various lawsuits is that the law cannot be amended to make technical corrections, a common congressional procedure. That's because Republicans opposed to the law would attempt to undermine it during the amendment process.

"There's absolutely no prospect of making even small, modest changes to the law," says Josh Blackman, a conservative blogger and assistant law professor at South Texas College of Law who has written a book on the challenges to Obamacare. "The second anything is modified in this law, it would just be gutted."

By Richard Wolf, USA Today

Source: The